HIMANK v. TORTURE CLAIMS APPEAL BOARD

CACV 279/2023, [2023] HKCA 1280

On Appeal from [2023] HKCFI 2221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 279 OF 2023

(ON APPEAL FROM HCAL NO 3088 OF 2019)

________________________

_____________________

________________

J U D G M E N T

________________

Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 August 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 September 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 February 2017.

BACKGROUND

2.  The Applicant is a national of India. He arrived in Hong Kong on 5 November 2015, but was refused entry by the Immigration Department. He then raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by his uncle over some dispute within their family. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 22 January 2016, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: the risk of torture[1], BOR 3 risk[2], and persecution risk[3]. The Applicant did not lodge any appeal/petition to the Board against that decision of the Director.

4.  By a Notice of Further Decision dated 7 February 2017, the Director dismissed the Applicant’s non-refoulement claim based on BOR 2 risk[4] (“Director’s Further Decision”).

5.  The Applicant appealed the Director’s Further Decision to the Board. On 6 September 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Further Decision (“the Board’s Decision”). The Judge summarised the Board’s Decision at §10 of the CALL-1 Form as follows:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his uncle that caused him to flee from his country to come to Hong Kong for protection or that there was any assault incident or injuries caused to his father or his uncle’s son that it did not accept that the Applicant has any real risk that he would be harmed or killed by his uncle upon his return to India, and that in any event that even on the basis of the Applicant’s own case that his claim does not engage the BOR 2 ground that his claim for non-refoulement protection failed on the applicable ground.”

THE JUDGE’S DECISION

6.  On 18 October 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, he stated that he did not agree with the Board’s Decision, and wanted to file an application for judicial review against that decision. He also repeated his claim that he could not go back to his home country, and his life was in danger over there.

7.  On 30 August 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[11] On 18 October 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the Board’s decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim of fear of harm from his uncle as before. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

…

[13] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 59 – 65 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, and given the fact that even on the basis of his own case at the highest that the Applicant’s claim simply does not engage the BOR 2 ground on its limited scope, as correctly found by the Board, I do not find any reasonably arguable basis to challenge the finding of the Board.

[14] The fact is that it has also been established by the Director in its earlier decision on the other applicable grounds including torture risk, BOR 3 risk and persecution risk that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[15] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim on BOR 2 risk as well as all the other applicable grounds.”

THIS APPEAL

8.  In his Notice of Appeal filed on 11 September 2023, the Applicant alleged that the decision of the Judge was reached unfairly without giving him an opportunity to clarify his case and the situation in his country.

9.  Attached to the Notice of Appeal is a document titled “Applicant’s Affirmation and Grounds of Application”. In that document, the Applicant raised the following grounds of appeal:

(1)  the Board and the Director failed to properly assess his non-refoulement claim based on the risk of torture under Part VIIC of the Immigration Ordinance;

(2)  the Board and the Director failed to properly assess his non-refoulement claim based on BOR 2 risk.

10.  The Applicant failed to lodge any written submissions in support of his appeal in accordance with the directions of the Registrar of Civil Appeals dated 11 September 2023. He is deemed to have abandoned the right to rely on written submissions in support of his appeal.

11.  On 11 September 2023, the Applicant gave a written consent for his appeal to be disposed of on paper by the Court without an oral hearing. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on such basis.

DISCUSSION

12.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

14.  The Applicant’s complaint that the decision of the Judge was reached unfairly without giving him an opportunity to clarify his case and the situation in his country has no validity. The Applicant attended an oral hearing before the Judge on 8 August 2023, and was at liberty to give whatever clarification or explanation of his case or the situation in his country as he considered it appropriate. As recorded at §11 of the CALL-1 Form, at the hearing before the Judge, the Applicant merely repeated his claim of fear of harm from his uncle, but failed to put forth any proper ground for his intended judicial review.

15.  Insofar as his complaint against the Director’s decision rejecting his non-refoulement claim based on torture risk is concerned, the Applicant did not lodge any appeal or petition against that decision to the Board.

16.  The Director’s Further Decision rejecting his non-refoulement claim based on BOR 2 risk has been overtaken by the Board’s Decision. Insofar as the Board’s Decision is concerned, the matters raised in the “Applicant’s Affirmation and Grounds of Application” all fall within the province of the Board. No error of law or procedural unfairness or irrationality in the Board’s Decision is shown in the present case.

17.  The Applicant has failed to show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

18.  The Applicant’s appeal against the Order has no merit and is dismissed.